Should the Air Force Be Sued Over Texas Church Shooting? Some Legal Authorities Say Yes

| NOV 10, 2017 | 5:37 PM

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It's always the same.

As with all mass shootings and other horrific crimes that are almost incomprehensible, the same questions were asked following the shooting at the First Baptist Church in Sutherland Springs, Texas, last Sunday that are always asked:

  • How could this happen?
  • Who was responsible?
  • Could anyone have prevented it?

In addition to the inevitable gun-control debates that follow every mass shooting, as well as immediate search for the shooter's motive, within just 24 hours, Sunday's shooting took on a different twist:

The U.S. Air Force admitted it had failed to report shooter Devin Patrick Kelley's criminal past to the FBI, a direct violation of Pentagon regulations.

As the Associated Press reported, Kelley was discharged from the Air Force in 2014 for bad conduct, the result of a 2012 assault on his ex-wife in which he not only choked her but hit her young son hard enough to fracture his skull.

Prior to Kelley's discharge, sheriff's deputies also responded to a domestic violence call from his home over an assault against his girlfriend, who later became his second wife.

Kelley purchased four firearms — including the semi-automatic weapon used in the shooting — in 2014, 2015, 2016, and 2017, according to Vice. Had his history of violence been reported to the FBI, and subsequently entered into the National Criminal Information Center database, those purchases could have been prevented.

As a result, two other questions are now being asked: could the Air Force be held liable for the shooting due to its failure to inform the FBI of Kelly's past violence?

If so, could it be sued? As Vice reported, the answer could be “yes,” to both questions, according to several legal authorities.

As pointed out in the article, legal authorities say victims of the shooting and their families could file a lawsuit under the Federal Tort Claims Act (FTCA), a statute that allows private citizens to sue the federal government “under certain circumstances.”

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Under the FTCA, the government “recognizes liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties.”

Georgia State University law professor Timothy Lytton suggested to Vice that there's clear case for a lawsuit:

“This is a negligence claim along the order of suing a therapist for failure to report threats by a patient. Here we have a case where the Air Force was in possession of information they have an obligation to report, and they failed to do that.”

Eugene Fidell, a military justice expert at Yale Law School, said he is skeptical anyone could prove the Air Force caused the harm in the Texas church shooting case.

“I would bet on the government in such a lawsuit,” he said. “The intervening act is a criminal act would break any chain of causation.”

But other lawyers disagree, citing the 1996 law meant to prevent people like Kelley from buying guns to commit crimes like this one. Michael Wilson, a lawyer who has sued the military at least five times over medical negligence, said he thinks the families of the victims won’t have a problem proving causation.

“If he had stolen the gun then I think there’d be a causation issue, but in fact, he got the gun legally from a gun seller because he wasn’t on the list,” he said. “[The law] is to prevent events like this from happening.”

Georgetown Law School Professor Heidi Li Feldman, who agrees the government would settle the case, told Vice a settlement would spur Congress to act on restricting the sale of assault rifles:

“If the problem we want to address is the prevalence of assault rifles in the civilian population this is a very roundabout way to do that.

As families of victims of mass shootings start going after other parties, this might motivate other parties to urge Congress to do something about gun control.

They don’t want to be picking up the tab for something that is traceable to the push to sell weapons.”

First Baptist Pastor Frank Pomeroy, whose 14-year-old daughter was killed in the shooting, said on Thursday that the church will be demolished and replaced by a prayer garden. He told leaders of the Southern Baptist Convention earlier in the week it would be too painful to continue using First Baptist Church as a place of worship.

Parishioner Charlene Uhl, whose 16-year-old daughter was also killed in the shooting, agrees with her pastor: “There should still be church, just not here.”